Tuesday, March 25, 2014

The
detective pulled his chair closer to Joe, the mentally ill suspect
sitting alongside him in the small, windowless room. Joe kept denying that he had killed his mother, but the detective wasn’t buying it. Looking Joe straight in
the eye, he leaned in and said:

“Look,
Joe, your mother was a cancer. Think about all of the bad things you
told us she did. She hurt people. You should be proud of what you did.
Seriously! She was a problem, and you eliminated that problem. That was
the right thing to do. It took a hell of a lot of courage. I'm sure
other people in the family were fed up with her, too, but they didn't
have the balls to do what you did."

Does this sound like a far-fetched thing for a cop to say to a criminal
suspect, especially about his own mother?

Well, it isn't. This is an almost-verbatim
transcription that I made from the audiotape of the interrogation.

After
being involved in dozens of similar cases, the gambit was no longer
shocking to me. It comes from the Reid method that is now used almost
universally by American police. The idea is to offer the suspect a
rationale that minimizes his moral culpability for the offense – while
carefully avoiding any minimization of legal responsibility.

Critical awareness growing over flawed Reid technique

The
Reid technique, the brainchild of John E. Reid and Associates, is
fundamental to modern interrogation techniques. But it’s getting greater
scrutiny in recent years thanks to growing awareness of the problem of
false confessions. Of the convicted people who have been conclusively
cleared by DNA evidence, about one out of four had confessed to the
crime – often due to clever ruses designed and promoted by the Reid
school. The case of the Central Park Five, featured in an excellent book
as well as a powerful new documentary, is one such case.

Adrian Thomas in interrogation room

Another
alarming case getting critical attention at the moment is that of
Adrian P. Thomas, who was interrogated for 10 hours by police in upstate
New York while his infant son lay in the hospital, misdiagnosed
with a skull fracture. The detectives pulled out all the stops, lying
to him about the evidence, threatening to arrest his wife, promising him
leniency, speculating about “repressed” memory, and adding a sense of
urgency by saying the doctors needed information from him in order to save his
dying son.

Thomas
ultimately confessed to a crime that probably never happened at all.
Both the doctor who contacted police and the county medical examiner had
failed to detect the massive blood and brain infection that likely
killed the youngster. Although Mr. Thomas almost immediately recanted
his confession, it was too late; the damning videotape was played almost
in its entirety at his trial.
Thomas, who is African American, was convicted after the trial judge
refused to let defense expert witness Richard Ofshe testify about the
psychological tactics that can cause an innocent person to confess.

The
case was the subject of a critically acclaimed, jaw-dropping
documentary, Scenes of a Crime, which I highly recommend. Just last
month, after the release of the film, New York’s highest court
overturned Mr. Thomas’s conviction, calling the interrogation
procedures “coercive” and the confession “involuntary.” Thomas faces a
retrial at which the confession will be excluded, leaving no evidence
connecting him to a crime. New Yorker exploration

The latest critical attention is a lengthy essay in the influential New Yorker magazine. Author Douglas
Starr describes his adventure undergoing the Reid training, and
presents critical research casting doubts on both the fairness and the
accuracy of the method.The
essay, which I highly recommend for anyone interested in the topic,
explores the research of leading academics including Saul Kassin,
Richard Leo, Aldert Vrij
and Melissa Russano. These scholars agree that the Reid method is great
at eliciting self-incriminating statements, but not so good at
distinguishing true confessions from false ones.

Kassin, a
prominent expert and a frequent media critic, believes the Reid
Technique is inherently coercive. As Starr explains his position:

“The
interrogator's refusal to listen to a suspect's denials creates
feelings of hopelessness, which are compounded by the fake file and by
lies about the evidence. At this point, short-term thinking takes over.
Confession opens something of an escape hatch, so it is only natural
that some people choose it.”

Time to move on?

Just
as psychologically coercive techniques replaced the physical coercion
of the olden days’ “third degree,” even within the U.S. law enforcement
community some think that the Reid technique has outlived its time.

In
Britain, Canada and some other countries, police have switched to less
coercive interviewing procedures, such as PEACE, which stands for
Preparation and Planning, Engage and Explain, Account, Closure,
Evaluate.

The
method is radically different, in that rather than trying to entrap a
suspect using falsehoods and psychological ploys, the detective
approaches the interview almost like a journalist, asking open-ended
questions to get the whole story, and then following up by going back
over the story looking for inconsistencies.

Although
some U.S. law enforcement leaders are working to develop similar
approaches, Kassin told Starr he is skeptical of wholesale change: “The
culture of confrontation, he feels, is too embedded in our society.”

I
tend to agree. If anything, as in the example at the
outset of this post, I am seeing the Reid techniques taken to more and
more extreme levels. That's probably the results of courts' tacit encouragement, in refusing to ban deceit and in the watering
down of suspects’ Miranda rights until they are a joke.

Sadly, police interrogations these days often look and feel more like cynical game-playing than a process with any integrity. For that, Lady Justice weeps.

Sunday, March 16, 2014

This
is one in a series of on-the-ground reports from clinician Jon Brandt of
Minnesota on the high-profile legal battle over the civil commitment of
sex offenders in his state, a battle with potentially national repercussions.

Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a
civil rights case brought by civil detainees over the constitutionality
of the Minnesota Sex Offender Program (MSOP). Although stopping short,
for now, of declaring the program unconstitutional, the judge ordered
new procedures to make release attainable for the 700 detainees. He
warned that he may ultimately find the program to be unconstitutional if
he determines that it is essentially punitive or if it confines men who
are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support
to accomplish the reforms demanded by the federal court. If
the state legislature adjourns without taking action, it seems likely
that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision
that it is too early, in what will be protracted litigation, to rule on
the constitutionality of any part of MSOP. However, his ruling leaves
little doubt that he will hold the status quo to be an unconstitutional
encroachment on civil liberties:

"[I]t
appears that MSOP may very well be serving the constitutionally
impermissible purposes of retribution and deterrence. … If, with the
benefit of discovery, [the detainees] are able to demonstrate that the
commitment statutes are systematically applied in such a way as to
indefinitely commit individual class members who are no longer
dangerous, or that MSOP is administered as a punitive system despite its
statutory treatment purpose, Plaintiffs will likely prove up their
claims."

Over
the past two decades, more than 700 sexual offenders, deemed dangerous
by state courts, have been sent to the program for treatment. Once
there, detainees complain, disingenuous treatment and onerous program
goals make release virtually impossible.

"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."

Right to treatment?

Detainee at Moose Lake detention facility in Minnesota

If
the position of the detainees can be reduced to the maxim that “no one
has ever gotten out,” perhaps the State’s (defendant’s) position can be
oversimplified to, “MSOP clients have no constitutional right to
treatment.” Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by
judicial precedent, one of the essential constitutional underpinnings of
civil detention programs for sex offenders (as distinct from criminal
punishment). Judge Frank more than hinted at an ultimate finding in
support of the detainees’ position, saying:

"Given
the prison-like conditions described by Plaintiffs, and the lack of
treatment and essentially no-exit regime alleged in this case, it may
well be that, with a fully developed record, the Court will find the
totality of the MSOP system to be unacceptably and unconstitutionally
punitive."

He
noted that it would be unconstitutional, under existing U.S. Supreme
Court rulings, to operate a civil commitment program under the guise of
providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank

In
his ruling, Judge Frank issued a landmark change, effectively shifting
the burden of proof on how clients exit civil detention. Prior to this
ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they
had completed the treatment program, demonstrate their readiness for
community re-entry, and get the green light for release from two review panels. Under that scheme,
in 20 years only two of more than 700 men gained even a conditional
release. Citing substantial case law and programs in other states, Judge
Frank turned that process upside down:

“It
is unquestionable that commitment, at the outset, must be justified by
law. Similarly, … continued commitment must also be justified. A statute
that -- as written, as applied, or as implemented -- renders discharge from a
sex offender civil commitment program more onerous than admission to
it, such that individuals who no longer meet commitment criteria remain
confined, raises grave due process questions. In that regard, the Court
expresses serious doubts as to the constitutionality of Minnesota’s sex
offender commitment statutes and their implementation through MSOP.

“Today,
the Court finds that it is constitutionally mandated that only
individuals who constitute a “real, continuing, and serious danger to
society” may continue to be civilly committed to MSOP. See Hendricks,
521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates
that MSOP systematically continues to confine individuals who are not 'a
real, continuing, and serious danger to society,' then such confinement
will be held unconstitutional."

State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota
is highly critical of the Minnesota program. Laying out relevant case
law, the Brief claims that all three branches of Minnesota’s government
have abdicated responsibilities for ensuring the program’s tenuous
promises. The Brief observes that after the Federal Court advised the
State Legislature in 2012 that urgent changes were needed, the 2013
Legislature failed to act; by executive order, the last two Minnesota
Governors put constitutionally questionable moratoriums on releases; and
state appellate courts have repeatedly failed to correct program deficiencies.

Citing “massive deprivations of liberties,” and accumulating
evidence that civil detention is punitive in nature, the Brief refers to
the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative
session expires without lawmakers taking action, there is little doubt
that the federal court will intervene, perhaps as it did in the State of Washington. Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review
of MSOP. He also ordered the state’s Department of Human Services to
assemble a Task Force of prominent stakeholders to explore program
challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog)
to help credibly guide the process. He asked both parties to the
lawsuit, and the experts themselves, to identify the tasks and goals to
which the “dream team” should endeavor, and then, leaving no doubt that
change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In
addition to a complete review of the MSOP program, Judge Frank
indicated that all current detainees will be reevaluated by independent
experts to determine whether they currently meet criteria for civil
commitment and, if so, whether they could be treated in less restrictive
settings. He ordered reevaluations to begin with those likely to be
most eligible for a reduction in custody. He even threw a bone to the
100 or so discouraged (or obstinate) detainees who have withdrawn from
treatment:

“It
defies reason that individuals who are comatose or otherwise completely
incapacitated would be considered so dangerous as to require continued
confinement in a secure, prison-like facility. Moreover, an individual
who refuses to participate in treatment, but is no longer dangerous,
cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”

Judge
Frank directed his final admonition to state administrators and the
Minnesota Legislature, which just convened its 2014 session, stating
that the time for “substantial changes” is now:

“If
the evidence requires it, the Court will act. But it is the Minnesota
Legislature that is best equipped to develop policies and pass
laws -- within the limits of the Constitution -- that both protect public
safety and preserve the rights of the class. The time for legislative
action is now. Time and again, professional assessments have identified
grave deficiencies in the program. Regardless of the claims raised in
this case, and irrespective of the Court’s ultimate rulings on any
constitutional questions with which it is presented, the interests of
justice require that substantial changes be made to Minnesota’s sex
offender civil commitment scheme.

“The
program’s systemic problems will only worsen as hundreds of additional
detainees are driven into MSOP over the next few years. The politicians
of this great State must now ask themselves if they will act to revise a
system that is clearly broken, or stand idly by and do nothing, simply
awaiting Court intervention.”

In
reserving a ruling of “unconstitutional,” Judge Frank has been shrewd
in attempting to force Minnesota’s government leadership to the table.
If state leaders acknowledge the federal court directives, seize good
research, understand the limits of forensic psychology, and muster the
professional courage to marshal bold legislative initiatives, Minnesota
could potentially develop a national model for the civil commitment of
sex offenders. If not, Judge Frank has left little doubt that the US
District Court for Minnesota will rebalance legitimate concerns of
public safety, effective treatment, and civil liberties for those under
civil commitment.

Either
way, these proceedings are likely to contribute to the national debate
about whether civil commitment can be effectively reconciled with sound
public policy and constitutional law, or whether civil commitment
schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon
Brandt is a clinical social worker in Minnesota, for 35 years working
in the prevention of sexual abuse. He provides evaluations,
treatment, and supervision to sexual offenders, and
professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE.

Sunday, March 9, 2014

In an unprecedented case, a civil jury has awarded $1 million in damages to a psychologist who was retaliated against after she challenged the validity of a state hospital's competency restoration methods.

Experts at the trial included Thomas Grisso and Randy Otto, prominent leaders in the field of forensic psychology who have written
and taught extensively on best practices in the assessment of competency to stand trial.

After a month-long trial with dozens of witnesses, the jury found that Napa State Hospital failed to apply generally accepted
professional standards for competency assessment and coerced its
psychologists to find patients competent to stand trial "without regard
to the psychologist's independent professional judgment, and without
application of objective, standardized, normed, and reliable
instruments."

Photo credit: J. L. Sousa, Napa Valley Register

Melody Samuelson, the psychologist plaintiff, ran afoul of her supervising psychologists at the Northern California hospital in 2008, when she testified for the defense at a competency hearing in a capital murder case in Contra Costa County. She had treated "Patient A" the prior year and had doubts about whether he was capable of being restored to competency, as his current treatment team claimed. Both the prosecutor and a hospital psychiatrist who testified for the state complained about Samuelson's testimony to then-Chief Psychologist James Jones, who launched an investigation that ultimately led to Samuelson's firing.

Samuelson was reinstated after a three-day hearing in 2011. An administrative law judge ruled that hospital administrators had failed to prove that Samuelson overstated her credentials during her 2008 testimony. Samuelson was not yet licensed at the time.

Samuelson subsequently filed a civil suit
against the hospital, the chief psychologist, and two other
supervising psychologists, claiming they engaged in a string of retaliatory actions
against her even after her reinstatement. These actions included initiating a police investigation for perjury and taking action against her state license. She said she incurred the wrath of hospital administrators by repeatedly objecting to sham competency restoration practices designed to get defendants out of the hospital as quickly as possible, whether or not they were actually fit for trial.

Napa is the primary state psychiatric hospital serving Northern California, and
houses defendants undergoing competency restoration treatment and those
found not guilty by reason of insanity.

It has long been general knowledge that the overcrowded hospital routinely certifies criminal defendants
as mentally competent with little
seeming regard for whether they are truly fit to stand trial. I have evaluated many a criminal defendant shipped back to
court with a formal certificate of competency restoration, whose mental condition is virtually identical to when he was sent to Napa
for competency training in the first place. (Typically, such defendants now proudly recite random legal factoids that have been drilled into them -- such as "the four pleas" -- that are often irrelevant and unnecessary to their cases.)

But until Samuelson blew the whistle, there was little direct evidence from within the institutions of intentionality rather than mere bureaucratic incompetence.
Samuelson alleged in her civil complaint that Chief Psychologist Jones "made clear to Samuelson that he was
committed to … returning patients to court as competent to stand trial,
and to minimizing the time for attaining such positive outcomes,
regardless of the actual competency of individuals to stand trial."

According
to Samuelson’s lawsuit, one reason that psychologists were pressured to find patients competent was to improve outcome statistics
as mandated by a federal consent decree. In 2007, around the time of Samuelson’s hiring, the U.S. Attorney General's Office negotiated the consent decree
mandating sweeping changes aimed at improving patient care and reducing
suicides and assaults at Napa. The federal investigation had revealed
widespread civil rights violations, including generic
"treatment" and massive overuse of seclusion and restraints.

Rote memorization

A longstanding criticism of the hospital's competency restoration program is that it focuses on rote memorization of simple legal
terminology, ignoring the second prong of the Dusky legal standard,
which requires that a defendant have the capacity to rationally assist
his attorney in the conduct of his defense.

In her lawsuit, Samuelson accused the hospital of violating the standard of care for forensic evaluations
and treatment by relying upon subjective assessment methods
that are easily skewed. Defendant progress was measured using an unstandardized
and unpublished instrument, the Revised Competency to Stand Trial
Assessment Instrument, or RCAI, and a subjectively scored "mock trial"
that was scripted on a case-by-case basis by poorly trained
non-psychologists, the lawsuit alleged.

According to testimony at the Napa County civil trial, the hospital drilled patients on simple factual information about the legal system rather than teaching them how to reason rationally about their cases. Staff distributed a handbook outlining the factual questions and answers, posted the RCAI items at the nurse's station, and administered the RCAI repeatedly, coaching patients with the correct answers until they could pass the test.

Although forensic psychology experts Grisso and Otto were retained by opposite sides -- Grisso by the hospital and Otto by the plaintiff -- they agreed that this process falls short of the standard of practice in the field. It ignores the Constitutional requirement that, in order to be fit for trial, a criminal defendant must have a rational understanding of his own case as well as the capacity for rational decision-making.

It has long been my observation that the hospital's program was generic and failed to address defendants' specific legal circumstances. Both Grisso, who authored one of the earliest and most widely referenced manuals for assessing competency to stand trial, now in its second edition, and Otto, co-author of The Handbook of Forensic Psychology and other seminal reference works, testified that competency evaluations must address the defendant's understanding of his or her own specific legal circumstances, sources close to the case told me. Disclosure of test data unethical?

Another pivotal issue at trial, according to my sources, was whether Samuelson's disclosure of test data from two competency instruments she administered -- the Evaluation of Competency to Stand Trial-Revised (ECST-R) and the MacArthur Competence Assessment Tool (MacCAT-CA) -- was improper. Samuelson disclosed the data at Patient A's 2008 competency hearing, after obtaining an authorization from the patient and a court order from the judge.

The hospital peer review committee that first recommended Samuelson's firing reportedly claimed that this disclosure was unethical and a violation of the American Psychological Association's Ethics Code.

Nothing could be further from the truth. The current version of the Ethics Code contain no prohibition on this type of disclosure in legal settings. Furthermore, fairness dictates that the legal parties be allowed to view data that are being invoked to decide a defendant's fate, so as to be able to independently analyze their accuracy and legitimacy.

The jury levied $890,000 in damages against the hospital, $50,000
personally against Jones, described in the lawsuit as "the ringleader"
of the campaign against Samuelson, and $30,000 each
against two other supervising psychologists -- Deborah White and Nami
Kim -- who allegedly conspired with Jones. Although punitive damages were not awarded, the jury found that the three psychologists acted intentionally and with "malice, oppression or fraud" toward Samuelson.

The state has until the end of next month to appeal the verdict, according to reporter Jon Ortiz of the Sacramento Bee, the only media outlet to cover the verdict so far.

Hat tip: Gretchen White

* * * * *

The Sacramento Bee report on the verdict is HERE. Dr. Samuelson’s civil complaint is HERE; the jury’s verdicts are are HERE.

. . . And, speaking of psychiatric care -- I highly recommend this incredible story of the one-of-a-kind town of Geel, Belgium. (Hat tip: Ken Pope)

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Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. This blog features news and commentary pertaining to forensic psychology, criminology, and psychology-law. If you find it useful, you may subscribe to the newsletter (above). See Dr. Franklin's website for more information.

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